De La O v. Housing Authority of City of El Paso
| Decision Date | 18 July 2005 |
| Docket Number | No. 04-50363.,04-50363. |
| Citation | 417 F.3d 495 |
| Parties | Rosalina DE LA O and Maria Christina Rivera, Plaintiffs-Appellants, v. HOUSING AUTHORITY OF THE CITY OF EL PASO, TEXAS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fernando J. Chacon (argued), El Paso, TX, for Plaintiffs-Appellants.
Edward W. Dunbar (argued), Dunbar, Armendariz, Crowley & Hegeman, El Paso, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Western District of Texas.
Before SMITH, DENNIS and PRADO, Circuit Judges.
I.
In 2000, Jesus de la O and Roberto Vasquez sued to challenge certain regulations of the Housing Authority of the City of El Paso ("HACEP"). Vasquez, who did not reside in any HACEP facility, was a candidate for chair of the El Paso County Democratic Party and sought to distribute literature and to campaign door-to-door at Sherman Oaks, a HACEP facility. De la O resided at the Sun Plaza Apartments (a HACEP-operated subsidized housing facility) and complained that the restrictions on political campaigning infringed on his First Amendment rights.
The challenged regulations included a "trespass after warning" policy and a policy restricting the distribution of flyers. These regulations were as follows:
Rule D.2. Trespassing. The development premises are for the exclusive use and enjoyment of the residents, members of their households, their guests and visitors, and such other persons who have legitimate business on the premises, e.g., law enforcement and other governmental personnel, utility service workers, HACEP contractors, and others as authorized by HACEP. All other persons will be regarded as trespassers subject to prosecution as allowed by state or municipal ordinance.
Any person who desires access to any development premises and any person found on the walks, ways, playgrounds, parking lots, drives and other common areas of the development premises will be required by any law enforcement or HACEP personnel to identify himself or herself and to prove authority to be on the development premises. Any person who refuses to provide personal identification or cannot show authority to be on the development premises will receive a "trespass warning" ordering the person to leave the development premises or be subject to arrest and prosecution to the extent permitted by state law or municipal ordinance.
Any person observed by law enforcement or HACEP personnel violating any HACEP rule, or federal, state or municipal law, regulation, or ordinance will be ordered by law enforcement or HACEP personnel to leave the development premises.
Rule D.5. Notices and Flyers. HACEP does not allow door-to-door sales. If a resident desires to distribute notices or flyers in his development, the resident must obtain advance approval of the Development's Housing Manager and provide the Housing Manager with a copy of the proposed notice or flyer. A resident may not distribute a notice or flyer before 9:00 a.m. or after 8:00 p.m. Under no circumstances will a notice or a flyer be left in plain view on a resident's door if a resident of the unit is not at home or declines to answer the door. A resident distributing such flyers or notices must do nothing to allow the flyers or notices to become litter or which would disrupt the peaceful use and enjoyment of the other residents in the development or the residents' use of common areas.
De la O v. HACEP, No. 02-CV-456, at 2 n. 3 (W.D.Tex. Mar. 24, 2004).1
The district court dismissed on summary judgment, holding the challenged regulations constitutional. On appeal, a panel of this court reversed, holding that "the manner in which HACEP seeks to accomplish its goal of crime prevention is unreasonable under the circumstances herein presented," and the regulations were therefore unconstitutional.2 The case, however, was voted en banc, and after briefing and argument had concluded, de la O died. Because Vasquez had not filed an appeal, the absence of a living plaintiff rendered the case moot, and it was dismissed.
In 2002, de la O's widow, Rosalina de la O, and Maria Christina Rivera brought the current suit challenging HACEP's trespass and distribution rules. On HACEP's motion for summary judgment, the district court concluded that (1) no genuine issue of material fact remained for trial, (2) the HACEP facilities constitute non-public fora, (3) the rules were viewpoint neutral, and (4) the rules were reasonable. As a consequence, the court held that the rules did not violate the First Amendment and dismissed the plaintiffs' claims.
After this appeal was filed, HACEP voluntarily amended the rules, which now allow for non-residents to enter facilities to engage in political and religious activities door-to-door. The trespassing regulation now contains a section entitled "Political and Religious Activities," which explicitly allows any person to enter a HACEP development to engage in political campaigning and/or religious proselytizing. To take advantage of this new policy, a non-resident must provide advance notice to the development's management. Additionally, the policy no longer requires management's approval of a copy of a flyer in advance of its distribution. One must still give advance notice that he will be distributing literature.
At this court's request, the parties submitted supplemental briefing on the question whether these amendments render the case moot. HACEP contends the case is moot, and plaintiffs argue that their claims survive the amendments.
II.
The federal courts are empowered by Article III to hear "cases and controversies." U.S. CONST. art. III, § 2. Accordingly, an actual, live controversy must remain "at all stages of federal court proceedings, both at the trial and appellate levels."3 That is, "[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).'"4 Therefore, a request for injunctive relief remains live only so long as there is some present harm left to enjoin. HACEP contends that its amendment to the regulations renders de la O's claims moot.
This logic is valid only insofar as it pertains to the claims for injunctive relief. It is well-established that "[c]laims for damages or other monetary relief automatically avoid mootness," so long as the underlying claim remains valid on its merits.5 If, on the other hand, the defendants were immune from a damages award, it would be unnecessary for us to consider the constitutionality of the un-amended regulations.6 Although such a result would allow us to avoid a constitutional question,7 HACEP, the sole defendant, is an entity comprised wholly of members appointed by the mayor of El Paso. As an arm of local government, not an instrument of the state, it is not entitled to sovereign immunity under the Eleventh Amendment.8 The doctrine of qualified immunity, furthermore, is applicable only to government officials, not municipal entities.9 The pleading of a colorable claim for damages thus precludes a finding of mootness.
The existence of the claim for damages, however, does not end our inquiry. That is, although we must consider the constitutionality of the rules (pre-amendment) for purposes of the damages claim, the plaintiffs continue to press their claim for injunctive relief against the amended rules. Neither side's brief addresses the problem of our court's reviewing, in the first instance, the constitutionality of regulations that, in their current form, have not been evaluated by the district court.
One possible option for dealing with this dilemma would be to remand for the district court to have the first opportunity to consider the constitutionality of the amended regulations. Such an approach would be consistent with our policy that the court of appeals will not normally consider evidence or arguments not presented to the district court.10
On the other hand, remanding the case potentially creates further difficulties. For example, if we were to remand and the district court proceeded again to uphold the regulations as valid, HACEP could again amend its regulations while an appeal was pending. Such a circumstance necessarily would deprive the plaintiffs of any possibility of appellate review. Similar concerns have motivated the courts to recognize an exception to the mootness doctrine where a challenged behavior is voluntarily ceased by the defendant but the defendant is capable of resuming the practice at any time. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
Furthermore, were we to remand, the outcome in the district court is certain. Although the current regulations differ from those at issue before the district court, the new regulations are less restrictive than their predecessors. Given that the district court deemed the prior rules constitutionally permissible, that court presumably would find that the amended rules also pass constitutional muster. Under such circumstances, the decision to remand, aside from allowing for the evasion-of-review situation set forth above, would be inefficient. Consequently, the constitutionality of both sets of regulations is properly before us.
III.
De la O contends that the district court improperly disposed of the case on summary judgment despite the existence of issues of material fact. We review a summary judgment de novo. Harris v. Rhodes, 94 F.3d 196, 197 (5th Cir.1996). Where, as here, we are considering a First Amendment challenge to a government regulation of speech in a non-public forum, the relevant question is whether the regulation is viewpoint-neutral and reasonable in light of the forum's purpose.11 Therefore, summary judgments are appropriate only where there is no factual issue relating to the neutrality of a regulation (on its face or as applied) or with respect to the government's proffered...
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